Losasso v. Jones Bros. Co.

• Decision Date: 08 February 1915
• Citation: 93 A. 266,88 Vt. 526
• Parties: LOSASSO v. JONES BROS. CO.
• Court: Vermont Supreme Court

93 A. 266

88 Vt. 526

LOSASSO

v. JONES BROS. CO.

Supreme Court of Vermont. Washington.

Feb. 8, 1915.

Exceptions from Washington County Court; Frank L. Fish, Judge.

Action by Nicholas Losasso against the Jones Bros. Company. Verdict and judgment for plaintiff, and defendant excepts. Affirmed.

The evidence tended to show that defendant, a corporation, owns and operates two granite quarries in the town of Barre, one of which is called the "dark quarry," and is where the accident in question occurred; that before and at the time of the accident defendant had a superintendent of its quarries, and under him one Murray was foreman on the "dark quarry," having full charge there, including hiring and discharging help, in the absence of the superintendent; that the plaintiff, a journeyman quarryman of long experience, who had been working on that quarry not quite a year, was then employed there as a "head derrickman," in charge of a derrick, and had working under his direction one, two, or three men; that this derrick was used in removing stones from the bottom of the quarry to the yard where the good stones were cut into stock, and bad stones were sent to the dump; that in the process of quarrying the granite had been taken out sheet by sheet where the accident occurred, to a depth of about 20 feet from the top of the header, so called, which header was directly between two sheets of solid granite, one in front and one back of it, and it formed the bank of the quarry; that previous to about 20 days before the plaintiff was injured the top of the granite back of the place of the accident was level with the top of the header, but at that time the top layer of granite in front of the header was quarried, leaving the header sticking up about 2 feet above the sheet of granite in front of it, and slanting towards it, the granite back of the header being undisturbed; that the sheet of granite thus left in front, it being 10 or 12 feet in width, measuring from the header, and about 20 feet in depth, so far projected over that a person standing at its base would have the wall overhanging him; that the top of this sheet sloped about 4 feet in 12 towards the quarry, making such a slant that stones falling from the header upon the slope would slide or bound into the bottom of the quarry below; that this header was composed of loose or shaly or rotten stones, portions of which might sometimes fall therefrom, unless something be done to prevent it; that between 2 and 3 o'clock in the afternoon of the day before the accident a powderman prepared and set off a blast in the top of the sheet of granite in front of the header, and 9 or 10 feet back from the front edge of the granite, for the purpose of moving the sheet forward from the header, so it could be cut into pieces and removed; that an inspection of the powderman and the foreman immediately after the blast showed that the sheet of granite had been moved as contemplated, and that the blast had also caused the shale or loose stones in the header to bulge forward; that it is a part of the duties of a powderman, after firing a blast, to look after the results, and, if anything loose is hanging over, to take it out of the way, if he can; that after the blast in question was fired, the powderman, in the performance of this duty, reached with a bar, as well as he could from the place where he was standing, and tapped these bulging stones, at the same time telling the foreman, who was present, that it was not right—did not look safe; that, without the defect being remedied, the foreman immediately ordered the powderman to go to another part of the quarry to fire some holes there; that from the bottom of the quarry at and in the vicinity of the place of the accident it was impossible to see the header sticking up above the solid stone, because of the projecting wall, and it was also impossible to see the bulge in the header, or to know or appreciate any danger connected therewith; that, if one stepped away from the solid wall in order to get a better view of what was back of it at the top and above it, one could not see the header or any danger arising therefrom, because the floor of the quarry, a short distance in front, fell about 25 feet; that one working in the yard (which was some 300 feet from the place of the accident, and on the opposite side of the quarry) could see this header sticking up 2 feet or so above the granite in front of it, but at that distance one could not see the bulging condition of the stones nor the danger connected therewith; that at the time of the blast the day before the accident the superintendent was not on the quarry, and consequently the foreman had full charge of the work there, and directed that the blast be set off at the place in question; that the next morning, between 8 and 9 o'clock, the foreman ordered the plaintiff to go into the corner of the quarry just in front of said solid wall and below the place where the blasting had been done which loosened the stones in the header as above stated, to chain some stones lying there, which the foreman had marked with chalk, and remove them by means of the derrick to the yard, the foreman going with the plaintiff to the place of the stones and showing him what to do; that a driller had worked there on these stones the day before, and the fair inference is that it was to put them in shape to be lifted out by derrick; that the plaintiff, though he knew a blast had been fired in that direction, did not know just where the blast was, and did not know the result of it, neither could nor did he see the dangerous condition of the header, caused by it; that, as the plaintiff and his helper came into the part of the quarry where the marked stones were lying, they looked up at the wall to see if there were any loose stones, but saw none; it looked pretty safe; that from where they were doing their work the header could not be seen back of the sheet of granite, nor could it be seen from any part of the quarry where the plaintiff had been working since the top stone was removed, except he could see the header from the yard, but could not see whether it was overhanging or not, or dangerous; that about 20 days before his injury the plaintiff went on top of the header to pull down the top layer of granite then taken off in front of it as before stated, and though, after taking this off, the header was left sticking up about 2 feet, and slanting toward the place of the accident, it was tight on each side, nothing loose hanging over; that at the time in question the plaintiff and his helper had been at work chaining one of the marked stones for 2 or 3 minutes, when the stones in the face of the header, loosened by the blast as above described, suddenly fell out and came down where they were working, injuring the helper slightly and the plaintiff seriously; that they heard no warning of any danger, and the plaintiff did not know of or appreciate any danger arising from the bank of the quarry above him; that, of the different classes of workmen upon this quarry, One class do the drilling, another class attend to the blasting, and still another class handle the derricks; that the plaintiff belonged to the last-named class, and had nothing to do with the drilling or the blasting of stone, his work being to remove the stones from the bottom of the quarry to the yard, under the directions of the foreman; that the header ran clear across one side of the quarry, and, except at the place of the accident, the solid granite had been quarried therefrom, leaving it exposed in some places for a depth of 15 or 20 feet; that said header formed the bank of that side of the quarry, and after the granite in front of it was removed the header was left standing as and for the bank of the quarry.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

J. Ward Carver and S. Hollister Jackson, both of Barre, for plaintiff. John W. Gordon, of Barre, and F. L. Laird, of Montpelier, for defendant.

WATSON, J. At the close of the plaintiff's evidence, defendant moved for a directed verdict in its favor on the grounds: (1) That the evidence does not show negligence by the defendant; (2) that, if any negligence is shown, it was the negligence of a fellow servant; (3) that the plaintiff was on an equality with defendant in knowing of the danger which resulted in his injury, and, being so on an equality, he cannot recover; (4) that the plaintiff is confined by his declaration to negligence by defendant in having, maintaining, or leaving said bank or wall of granite in an unsafe position...